Ethics

Oral Argument in Appellate Court Requires Preparation.

, The Legal Intelligencer

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Sam Stretton
Samuel C. Stretton

Appellate advocacy is an enjoyable intellectual challenge and, if done properly, can change the law or help a client's cause. Lawyers must be prepared and must know the rules. Lawyers must know how to focus an argument and, most importantly, know when to sit down. But appellate arguments are a wonderful experience and every lawyer who has the opportunity to make an appellate oral argument should take advantage of it.

It's best not to use client testimonials 
in advertisements.

I am going to start a vigorous advertising campaign. Can I have clients come in and give testimonials about receiving excellent legal services?

Lawyer advertising has been allowed since 1977. Rules of Professional Conduct 7.1, 7.2 and 7.3 are the basic advertising rules in Pennsylvania. The rules prohibit unjustifiable expectations and misrepresentation or fraud.

Rule 7.2 also has specific advertisement requirements. If a lawyer is going to use a client in an advertisement, the lawyer must comply with Rule 7.2(g). An advertisement cannot contain a portrayal of a client by a nonclient. It cannot contain reenactment events, scenes or pictures that are not actual or authentic. Otherwise, a lawyer has to disclose what the advertisement is showing is an act or dramatization and the person is not the real client.

Even more importantly, testimonials by clients are very dangerous and can violate Rule 7.1. That rule prohibits a lawyer from making false and misleading communications. Comment 3 to the rule notes:

"An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters, without reference to the specific factual and legal circumstances of each client's case."

This comment summarizes the problem with using client testimonials. The client may think a lawyer is the best person to walk the planet because the lawyer obtained a good result for the client. But the client might not be in a position to know the full story. For instance, another lawyer might have gotten double the amount. Although the client thought the recovery was excellent, perhaps the lawyer would have gotten an even better resolution with more experience.

The better practice is not to use client testimonials. Using them usually ventures into the area of unjustified expectation or subjective beliefs that can be considered misleading and potentially trigger disciplinary action. Further, a lawyer should be careful with what he or she says in advertisements because the attorney-client privilege still applies. Obviously, a client can waive the privilege, but it is not always the wisest thing to do.

Clients come to lawyers because they have a problem. Hopefully, a lawyer can solve the problem in some fashion. But it is not usually in the clients' interest to have their names spread over the newspaper or advertisements of any kind. Most people don't need that invasion of privacy in their lives, just so the lawyer might get another case. The better practice is really not to involve clients in one's legal ads. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.

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